Attorney general petitions for a rehearing of a recent ruling that declared the California Coastal Commission unconstitutional. Meanwhile, Malibu, fighting its own battle with the commission, waits to see what will happen next.
By Michelle Logsdon/Special to The Malibu Times
The fight over the legal structure of the California Coastal Commission rages on, leaving many coastal cities such as Malibu on the edge of their seats waiting for a conclusion.
State Attorney General Bill Lockyer formally filed a petition, Jan. 15, asking the 3rd District Court of Appeals to rehear its ruling that deemed the Coastal Commission unconstitutional.
Some Malibuites are cheering the appellate court ruling, saying it will help reign in an agency that has been power-hungry and abusive. “Certain commissioners and staff [have ruled] the coast like their personal fiefdoms,” Jeff Harris said. “Their personal agendas and animosities have been so easily dictated into many unworkable, unscientific and punitive LCP [Local Coastal Program] rules for Malibu.”
Although some people would like to see the Coastal Commission disbanded, the appeals have bought the group more time to continue functioning fully as the organization that governs development and public access along the state’s 1,150-mile coastline.
Those in support of the Coastal Commission believe the loss of such an organization could be devastating for the state’s beaches and shoreline. In a statement, Lockyer said, “Regardless of the result this case ultimately brings, California cannot afford to abandon the stewardship provided by the commission and sacrifice the future, access and beauty of our coast.”
However, critics say that the Coastal Commission’s liberal interpretation of the Coastal Act at its extreme has resulted in decisions about what types of vegetation property owners may plant, or even what color they may paint their houses.
Lockyer’s action came on the heels of the 12-member Coastal Commission’s own unanimous vote to appeal the decision that states the agency violates the separation of powers doctrine because two-thirds of its members are appointed by the Legislature and can also be dismissed “at will.” The appellate court decision said the appointment and removal responsibilities give the legislative branch too much control over a commission that is part of the executive branch of government.
All of the Coastal Commission’s voting members are appointed by government officials. The governor appoints four to fixed terms. Four more are appointed by the Senate Rules Committee and four more by the Speaker of the Assembly. Those members serve at the pleasure of their appointees.
Sara Wan, the commissioner who lives in Malibu, was unavailable for comment but Commission Chairman Mike Reilly told the Los Angeles Times that if the appeals court judges do not reverse their decision, the group’s lawyers might ask the court to strike the “at will” removal language from the Coastal Act.
Reilly has also been meeting with lawmakers to address the problem through legislation. Assembly Natural Resources Committee Chairwoman Hannah-Beth Jackson (D-Santa Barbara) is introducing a bill that would take away the power of appointees to remove commissioners and give members of the group a fixed, two-year term.
That result would be tragic, according to Harris. “If we [Malibu residents] and others don’t act, the currently proposed quick fix by the Legislature to just delete language which would then allow the commissioners to keep their jobs for two years regardless of their job performance will likely result in a CCC that is even more dictatorial, unjust and out of control.”
A bill introduced by Republican Assembly member Mark Wyland, District 74, would keep the number of commission members to 12, changing the current two-year “at will” Legislature appointments to 4-year “term” appointments. The governor’s appointments, however, would continue to serve “at the pleasure of the governor.”
Some believe that a “simple fix” would result in commissioners who are not accountable to anyone, and that it would not satisfy the constitutionality question.
The issue of constitutionality came up when Rodolphe Streichenberger filed a lawsuit on behalf of his nonprofit environmental group, the Marine Forests Society, because the California Coastal Commission refused to grant the group a permit to operate a marine habitat made out of recycled tires off of the Balboa Pier. That suit was filed in 1997. In April 2001, a Sacramento Superior Court judge ruled in the case calling the Coastal Commission unconstitutional. The appeals court agreed.
The appellate court will decide by Jan. 29 whether or not to rehear the case. If it decides not to, the Coastal Commission plans to appeal the decision to the Supreme Court.